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Evidence submitted in support of a motion for summary judgment must be in admissible form. Medical records should generally be affirmed or certified, but a defendant in a New York auto accident case may rely on unsworn medical records received from the plaintiff. The defendant should, however, provide a foundation for such records in counsel’s affirmation. A New York court recently disregarded the records submitted by defendants in support of a motion for summary judgment due to their form.

The defendants filed a motion for summary judgment with seven exhibits. One exhibit was described as records from a hospital emergency room, but the records were not affirmed or certified. The defendants did not provide a foundation for the admissibility of these records, and the defense attorney’s affirmation did not provide a basis for the attorney’s knowledge that the records were what they were purported to be. The court disregarded those records.

The court also disregarded an unaffirmed report from a pain management doctor. Additionally, the court disregarded the affirmed report of a chiropractor. The court noted that chiropractors’ reports must be subscribed before a notary or other official to be in admissible form.

The defendants also submitted an exhibit they identified as the plaintiff’s deposition transcript. The transcript was not signed or certified, and the defendants did not establish that it should be deemed signed. The court found this exhibit was not in admissible form and disregarded it as well.

They also submitted the affirmed report of an orthopedic surgeon who conducted an independent medical examination of the plaintiff. This examination occurred more than a year after the accident, and the doctor did not opine on the plaintiff’s condition within the first 180 days after the accident. The doctor did not examine the plaintiff’s head wound or the resulting scar. He did not compare his findings to a normal range of motion. The court found the doctor’s report could not establish that the plaintiff had not sustained a serious injury.

The court found the defendants failed to make a prima facie case that the plaintiff had not sustained serious physical injuries under either the permanent consequential limitation, significant limitation of use, or 90/180-day categories.

The plaintiff had not filed an opposition to the motion in this case. A court cannot, however, grant a motion for summary judgment just because the other party does not file an opposition. The defendants must establish their right to summary judgment as a matter of law. If they fail to do so, the motion must be denied. The court therefore denied the defendants’ motion.

This case shows the importance of ensuring exhibits supporting a motion for summary judgment are in admissible form. The court did not even consider most of the defendants’ exhibits in this case. Although this case involved the records submitted by the defendants, plaintiffs’ exhibits supporting or opposing a motion for summary judgment must also be in admissible form.

If you have been seriously injured in an automobile accident, an experienced New York car accident attorney can help you seek the compensation you deserve. Call the Law Offices of Marc S. Albert at 1.855.252.3788.

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